NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal

revision before publication in the Vermont Reports. Readers are requested to notify the Reporter

of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109

State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made

before this opinion goes to press.

2020 VT 54

No. 2019-247

In re Sigismund Wysolmerski, Esq. Original Jurisdiction

(Office of Disciplinary Counsel, Appellant)

Professional Responsibility Board

February Term, 2020

Caryn E. Waxman, Chair

Sarah Katz, Disciplinary Counsel, Burlington, for Petitioner-Appellant.

Sigismund J. Wysolmerski, Pro Se, Rutland, Respondent-Appellee.

PRESENT: Robinson, Eaton and Carroll, JJ., and Grearson and Tomasi, Supr. JJ.,

Specially Assigned

¶ 1. EATON, J. This appeal concerns review of a determination by a hearing panel of

the Professional Responsibility Board that respondent, Sigismund Wysolmerski, committed

several violations of the Vermont Rules of Professional Conduct in his practice as an attorney. As

a result, the hearing panel suspended respondent from the practice of law for twelve months. This

Court ordered review of the hearing panel’s determination on its own motion pursuant to

Administrative Order 9, Rule 11.E and designated the Office of Disciplinary Counsel as appellant.

Disciplinary counsel argues the sanction imposed by the hearing panel should be increased to an

eighteen-month suspension because of respondent’s repeated dishonesty. Respondent seeks a

decreased sanction to a reprimand or suspension for less than six months because he believes a

longer suspension is unnecessary and would serve no purpose in preserving public confidence in

2

the legal profession. We disagree with both recommendations and order respondent disbarred

from the practice of law.

¶ 2. The hearing panel’s extensive factual findings—which, with two exceptions, are

not in dispute—are summarized as follows. Respondent has been an attorney primarily involved

in civil practice in Rutland since 1980. In 1997, respondent received a three-year suspension from

the practice of law as a result of multiple violations of the Rules of Professional Conduct taking

place over an eight-year period. See In re Wysolmerski, 167 Vt. 562, 702 A.2d 73 (1997) (mem.).

These violations included making false statements to attorneys and to the courts, failing to keep in

contact with clients, and failing to file a promised lawsuit. Respondent was reinstated to the

Vermont bar and the suspension lifted in 2001. Respondent received a private admonition in 2012

for misconduct not related to the conduct at issue in this case.

¶ 3. This disciplinary matter arises out of respondent’s representation of T.L., on a

contingent-fee basis, in connection with T.L.’s claims against his mortgage lender seeking a

mortgage modification and claiming deceptive lending practices. Respondent’s representation of

T.L. began in 2008. Ultimately, respondent filed a civil action in December 2014 on T.L.’s behalf

against multiple entities, including West Star Mortgage Inc. Throughout the pendency of the

lawsuit, T.L. lived in Maine.

¶ 4. The complaint alleged that West Star Mortgage Inc.’s predecessor, CFIC, had

assigned T.L.’s loan to others. Respondent had obtained information concerning West Star’s

potential involvement from a phone number on T.L.’s loan paperwork. Respondent called the

number and reached a person in Virginia who claimed to be working for “West Star Mortgage.”

Based on that call, respondent concluded that West Star Mortgage Inc. was the successor-

corporation to T.L.’s original lender. Respondent had the complaint served on the registered agent

of “West Star Mortgage Inc.” It was identified only as “West Star” in the sheriff’s return of service.

3

¶ 5. It turned out that there were two West Star Mortgage entities, a “West Star

Mortgage, Inc.,” based in Virginia, and a “West Star Mortgage Corporation” located in the

southwestern United States. General counsel of West Star Mortgage Inc., Jeremy Martin, who

received the complaint, called respondent and told him that his company had no record of lending

to T.L., and that respondent had probably served the wrong entity. Respondent told Martin he

would look into the issue and get back to him. Respondent agreed that no answer was required by

Martin’s company in the interim. Martin sent an email to respondent the same day confirming

respondent’s agreement granting an extension of time to answer if one became necessary.

Respondent never got back to Martin and never responded to the email.

¶ 6. In the meantime, respondent filed a motion to amend his complaint by changing

“West Star Mortgage Inc.” to “West Star Mortgage” without the suffix.1 The court granted his

motion a few days later. He did not serve the first amended complaint on West Star Mortgage Co.

or on West Star Mortgage Inc.

¶ 7. In late January 2015, Martin sent another email to respondent, again confirming

counsel’s understanding that respondent had agreed to an extension of time to answer and

requesting an update on respondent’s efforts to identify the proper West Star Mortgage entity.

Respondent did not reply to this email either.

¶ 8. The hearing panel found respondent verbally agreed to give Martin’s company an

indefinite extension of time to answer the complaint, subject to further communication between

respondent and corporate counsel. Attorneys entered appearances for the other defendants named

in the suit, including in the second amended complaint, which also was not served on either West

Star Mortgage entity. No one appeared on behalf of West Star Mortgage Co. or West Star

Mortgage Inc.

1 As used in this opinion, “West Star Mortgage Inc.” refers to the entity in Virginia, “West

Star Mortgage Co.” refers to the entity in the southwest, and “West Start Mortgage” refers to the

unspecified entity that respondent named in the amended complaint.

4

¶ 9. As the lawsuit progressed, respondent filed three affidavits with the court which

had purportedly been signed by T.L. Each of these affidavits was notarized by respondent and

stated, “Signed and subscribed under oath by [T.L.] a person known to me.” The first was dated

in August 2015 and filed in opposition to a motion to dismiss by a defendant. The second was

dated in October 2016 and filed in opposition to a motion for summary judgment filed by another

defendant. The third was dated in January 2017 and filed in support of a motion for entry of default

judgment by T.L. against West Star Mortgage. The hearing panel concluded that none of the

affidavits had been signed by T.L. The panel was unable, however, to determine who signed T.L.’s

name to the affidavits, whether the affidavits had been signed with T.L.’s authorization or consent,

or whether respondent was aware that T.L. had not signed them. The hearing panel found the

content of the affidavits were consistent with the guidance T.L. had provided to respondent in

pursuit of his claim. Respondent asserted that the affidavits were signed remotely and returned to

him, and when he notarized them he believed they bore T.L’s signature.2 The panel was unable to

conclude otherwise.

¶ 10. In connection with T.L.’s motion for default judgment against West Star Mortgage,

respondent filed his own affidavit in which he asserted West Star Mortgage was the successor to

CFIC, and that service had been accomplished on West Star Mortgage. Respondent also filed a

copy of the return of service made by the sheriff on “West Star.” The caption of the motion listed

“West Star Mortgage” as the defendant, but the body of the motion and the affidavit referenced

“West Star Mortgage Inc.” Respondent did not explain why he continued to use “West Star

Mortgage Inc.” after he had moved to amend the complaint to eliminate the “Inc.”

2 The hearing panel’s findings incorrectly state that respondent maintained that, at the time

he notarized the affidavits he believed they bore “[r]espondent’s signature.” The hearing panel

obviously meant that respondent maintained that, at the time he notarized them, he believed they

bore T.L.’s signature. This error plays no part in our decision.

5

¶ 11. Neither the motion for default nor respondent’s affidavit in support made any

mention of the extension of time that had been given by respondent to West Star Mortgage Inc.

Likewise, they did not mention that West Star Mortgage Inc. asserted that the wrong entity had

been sued, that West Star Mortgage Corporation might be the appropriate party, or give any

indication that respondent had investigated this assertion. Respondent was aware of the previous

communications with West Star Mortgage Inc. and knowingly chose to make no mention of them

to the court. He also did not provide West Star Mortgage Inc. with a copy of the motion for default.

¶ 12. The motion for default was granted against West Star Mortgage in May 2017 with

judgment for $325,000. Respondent made no effort to execute on the judgment against West Star

Mortgage Inc.

¶ 13. In June 2017, respondent filed an appeal with this Court from the trial court’s

decision granting summary judgment in favor of two other defendants in the suit. While the appeal

was pending, respondent requested and received an extension of time to file an appellant’s brief

on behalf of T.L. The order granting the extension warned that the appeal might be dismissed

without further notice if the brief was not timely filed. Subsequently, respondent failed to file a

brief and the appeal was dismissed.

¶ 14. During the pendency of the appeal, respondent and T.L. had several conversations.

Respondent had doubts about the possibility of success concerning T.L.’s appeal, which he

communicated to T.L. Despite those concerns, respondent at no time told T.L. that he wanted to

withdraw as his attorney or that he would be filing a motion to withdraw. Respondent also failed

to tell T.L. that he would not be filing a brief on his behalf.

¶ 15. On September 14, 2017, before the appeal was dismissed, T.L. sent an email to

respondent advising him that T.L. understood respondent had sent documents concerning the

appeal to him but that T.L. had not yet gotten them. Respondent did not reply to the email. T.L.

6

sent a follow-up email on September 25, 2017, again informing respondent that T.L. had not

received any documents and expressing his concern. Respondent did not reply to this email either.

¶ 16. About three weeks after T.L.’s second email, he traveled to Rutland to meet with

respondent. At that time, respondent told T.L. the appeal had been dismissed by the Court.

Respondent had not told T.L. of the dismissal at the time it occurred.3 Following that meeting,

T.L. contacted the Court directly and learned the appeal had been dismissed because respondent

missed the filing deadline. T.L. then emailed respondent expressing his surprise, anger, and

disappointment. Respondent did not reply to the email.

¶ 17. In 2017, respondent’s sister became ill with a serious disease. In July 2017, her

condition worsened, and she required extensive assistance and out-of-state medical services.

Respondent served as primary caregiver for his sister during her final illness until her death on

September 13, 2017. His sister’s illness caused respondent significant emotional distress and

placed demands on his time.

¶ 18. Respondent accepts responsibility for the dismissal of T.L.’s appeal and for not

promptly telling T.L. that he would not be filing a brief on his behalf.

¶ 19. In March 2018, West Star Mortgage Inc.’s successor’s corporate counsel, who had

previously communicated with respondent on behalf of West Star Mortgage Inc., sent another

email to respondent requesting an update on the status of the lawsuit. The email also asked

respondent to confirm that an agreement remained in place, and that no answer would be required

from West Star Mortgage Inc. until further notice and discussion between counsel for the parties.

Respondent sent a reply email that day stating that he no longer represented T.L. He did not tell

corporate counsel that a judgment for $325,000 had been entered against West Star Mortgage Inc.

several months previously as a result of respondent’s motion for default.

3 The appeal was dismissed on September 21, 2017, four days before T.L. sent his second

email to respondent expressing his concern.

7

¶ 20. Once they learned of the default judgment, West Star Mortgage Inc.’s successor

hired local counsel and filed a motion to vacate the default. A hearing was scheduled on the motion

to vacate at which corporate counsel for West Star Mortgage Inc.’s successor appeared and

testified. Respondent attended the hearing and advised the court that he was moving to withdraw

as counsel for T.L., who also attended the hearing. The court granted respondent’s motion to

withdraw but directed him to remain in the courtroom during the hearing on the motion to vacate.

Respondent made no statement to the court concerning the motion to vacate. The hearing panel

found respondent knowingly kept the court in the dark about the communications he had with West

Star Mortgage Inc.’s counsel, and amended the complaint to an entity that bore common elements

to West Star Mortgage Inc. and West Star Mortgage Corporation without any explanation. The

hearing panel found respondent’s misconduct to be knowing. The ABA Standards for Attorney

Discipline A. 1.1 define “knowledge” as the “conscious awareness of the nature or attendant

circumstances of his or her conduct both without the conscious objective or purpose to accomplish

a particular result.” ABA Standards, Theoretical Framework p. 6.

¶ 21. Disciplinary Counsel filed a petition alleging five counts of misconduct. The first

three counts each alleged conduct involving dishonesty, fraud, deceit, or misrepresentation in

violation of Rule 8.4(c) arising from respondent’s filing of the three affidavits discussed above.

Count four alleged that respondent “knowingly made a false statement of fact or law to a tribunal

or failed to correct a false statement of material fact or law previously made to the tribunal” in

violation of Rule 3.3(a)(1). This charge was predicated on respondent’s conduct surrounding the

motion for default judgment. The final count alleged that respondent failed to keep T.L reasonably

informed about the status of his pending appeal to this Court in violation of Rule 1.4(a)(3).

Following a hearing, a panel of the Professional Responsibility Board found that respondent

knowingly engaged in each of the charged actions, and that this misconduct violated Rules 8.4(c),

8

3.3(a)(1), and 1.4(a)(3). It concluded that the appropriate sanction was a twelve-month suspension

from the practice of law.

¶ 22. We review the hearing panel’s factual findings for clear error. A.O. 9, Rule 11(E).

“[W]hether the findings are purely factual or mixed law and fact,” we will uphold them where

“clearly and reasonably supported by the evidence.” In re Strouse, 2011 VT 77, ¶ 8, 190 Vt. 170,

34 A.3d 329 (per curiam) (quotation omitted). The panel’s legal conclusions, which include its

violation determinations and sanction recommendations, are reviewed de novo. In re Robinson,

2019 VT 8, ¶ 27, __ Vt. __, 209 A.3d 570 (per curiam).

I. Hearing Panel Findings

¶ 23. Respondent challenges only two factual findings of the hearing panel. First, he

denies that he told West Star Mortgage Inc.’s counsel that he could have an extension of time to

answer until respondent investigated the identity question further, and that no answer was required

in the meantime. At the disciplinary hearing, Attorney Martin testified that respondent told him

no answer would be required until respondent had investigated the issue of the correct defendant.

Respondent does not dispute that this evidence was provided at the hearing. Rather, he denies he

made those statements. Reconciling conflicting testimony is the province of the factfinder.

Travia’s Inc. v. State, Dept. of Taxes, 2013 VT 62, ¶ 17, 194 Vt. 585, 86 A.3d 394 (noting

credibility of contravening evidence is question for factfinder). The hearing panel chose not to

believe respondent and to credit the contrary evidence. Respondent’s continued denial does not

make the panel’s finding erroneous.

¶ 24. Respondent also denies that he knowingly kept the trial court in the dark about the

true state of affairs concerning the default motion. He argues he had moved to withdraw from the

case prior to the hearing on the motion to vacate, although the withdrawal motion was not granted

until the start of the hearing on the motion to vacate. Respondent does not clearly articulate why

he feels the hearing panel’s finding was erroneous. His apparent position is that he was under no

9

obligation to make any statement to the court once his motion to withdraw was granted. We

disagree with respondent’s position. See V.R.Pr.C. 3.3(a) (“A lawyer shall not knowingly. . . fail

to correct a false statement of material fact . . . previously made to the tribunal by the

lawyer . . . .”); id. cmt. 13 (explaining that obligation to rectify such statements continues until a

proceeding has concluded, i.e., “when a final judgment in the proceeding has been affirmed on

appeal or the time for review has passed”). In any event, there is ample evidence supporting the

hearing panel’s determination on this issue, even confining consideration to the pre-withdrawal

conduct of respondent. Respondent knowingly made no mention of the telephone conversation or

the three emails he had received from West Star Mortgage Inc. confirming the indefinite extension

of time to answer or the doubts raised by West Star Mortgage Inc. concerning the identity of the

correct defendant in his motion for default. Id. cmt. 3 (“There are circumstances where failure to

make a disclosure is the equivalent of an affirmative misrepresentation.”). He submitted a motion

for default which said that West Star Mortgage had “failed to appear, plead, or otherwise defend

within the time prescribed by the Rules.” In addition, respondent amended the complaint from

asserting a claim against “West Star Mortgage Inc.” to “West Star Mortgage” without further

identification. He provided no explanation to the court for the amendment, although this action

followed closely on the heels of doubts being raised as to the identity of the proper defendant.

¶ 25. The hearing panel’s finding that the respondent gave an indefinite extension to

answer and that he knowingly did not disclose important information concerning the default

motion are both clearly and reasonably supported by the evidence. There was no error in the

hearing panel’s findings.

II. Legal Conclusions

¶ 26. We are left then to consider whether the hearing panel’s legal conclusions,

including its violations determinations, were correct. If they were, we must then further consider

the panel’s sanction recommendation. We review the panel’s legal conclusions, including its

10

violations determinations and sanctions recommendations, de novo. See supra, ¶ 22. We have

recently clarified that in considering a hearing panel’s sanctions recommendations, “the ‘great

weight’ afforded to panel recommendations is more appropriately characterized as giving

consideration to the panel in light of this Court’s plenary authority, rather than giving the panel

‘deference’ as that term is used in our broader caselaw.” Robinson, 2019 VT 8, ¶ 25. Thus, while

we carefully consider the panel’s conclusions, where our analysis parts ways with that employed

by the panel, we “exercise our plenary authority to reach the appropriate conclusions and

sanctions.” Id. ¶ 27.

¶ 27. Respondent argues that the sanction recommended by Disciplinary Counsel and

that imposed by the hearing panel is too severe. Despite the lack of challenge to any of the panel’s

violations determinations, we review them in the context of our sanctions decision. Where a

violation of the Rules of Professional Conduct has occurred, the American Bar Association’s

Standards for Imposing Lawyer Sanctions guide our sanctions determinations. In re Fink, 2011

VT 42, ¶ 35, 189 Vt. 470, 22 A.3d 461; see Ctr. for Prof’l Responsibility, Am. Bar Ass’n,

Standards for Imposing Lawyer Sanctions (1986) (amended 1992) [hereinafter ABA Standards].

“Under this construct, we consider: ‘(a) the duty violated; (b) the lawyer’s mental state; (c) the

actual or potential injury caused by the lawyer’s misconduct; and (d) the existence of aggravating

or mitigating factors.’ ” Fink, 2011 VT 42, ¶ 35 (quoting ABA Standards § 3.0). The standards

provide a presumptive sanction “[d]epending on the importance of the duty violated, the level of

the attorney’s culpability, and the extent of the harm caused.” Id. However, the presumptive

sanction may be altered “depending on the existence of aggravating or mitigating factors.” Id.

Notably, “the purpose of sanctions is not to punish attorneys, but rather to protect the public from

harm and to maintain confidence in our legal institutions by deterring future misconduct.” Id.

(quotation omitted). We consider each violation in turn.

11

A. Violation of Rule 8.4(c)—Notarization of Affidavits

¶ 28. With respect to the three affidavits that respondent notarized and submitted to the

court, the hearing panel concluded that respondent had violated Rule 8.4(c) of the Rules of

Professional Conduct, which provides that “[i]t is professional misconduct for a lawyer

to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” The panel

concluded, and we agree, that to find a violation of Rule 8.4(c), some culpable state of mind is

necessary. Although Rule 8.4 is broad, we have previously recognized that it applies only to

conduct “so egregious that it indicates that the lawyer charged lacks the moral character to practice

law.” In re PRB Docket No. 2007-046, 2009 VT 115, ¶ 12, 187 Vt 35, 989 A.2d 523. Because an

attorney’s mental state determines how his conduct reflects on his moral character, we agree that

some scienter is required to support a violation of Rule 8.4(c). Compare Strouse, 2011 VT 77,

¶ 18 (affirming Rule 8.4(c) violation where attorney’s actions “motivated by a self-serving desire

to keep both her employment and her relationship”), with PRB Docket No. 2007-046, 2009 VT

115, ¶ 17 (declining to find Rule 8.4(c) violation where “respondents earnestly believed that their

actions were necessary and proper” and were motivated by desire to defend their client).

¶ 29. It is not contested that respondent filed three affidavits, executed at various times

over the course of nearly eighteen months, that respondent knew had not been signed in his

presence. He made no disclosure to the court that he had not seen the affiant sign the documents,

which failure defeated the purpose of the notarization. The jurat omitted the standard “subscribed

to and sworn before me” phrasing, but represented that they were signed under oath.4 This did not

4 We note that respondent’s misconduct took place prior to the effective date of the

Uniform Law on Notarial Acts, 26 V.S.A. §§ 5301-5378. See id. § 5364 (providing that person

executing signature “shall appear personally before the notary public,” accomplished either by

being “in the same physical place” or “communicating through a secure communication link”

pursuant to standards prescribed by rulemaking by the Secretary of State). However, the office of

the notary is one “ ‘long known to the civil law,’ ” as is its characteristic responsibility to “attest

to the authenticity of signatures” by notarizing documents. Notary Public, Black’s Law Dictionary

(11th ed. 2019) (quoting J. Proffatt, A Treatise on the Law Relating to the Office and Duties of

Notaries Public § 1, at 1 (J. Tyler & J. Stephens eds, 2d ed. 1892)); Jurat, Blacks Law Dictionary

12

put the court on notice that respondent did not see T.L. sign the affidavits or that any oath

administered to him was not sworn in respondent’s presence.5 See Sargent v. Shepard, 94 Vt. 351,

11 A. 447, 448-49 (1920) (holding that “[t]he omission of the words ‘before me’ preceding the

signature of the notary” does not alone destroy the presumption that the “affidavit was sworn to

before the notary who attached his signature to the jurat,” and finding that jurat stating

“[s]ubscribed and sworn to” was sufficient “to warrant a [court’s] inference that the affiant

personally appeared before the officer who signs the jurat”). Respondent’s submission of the

affidavits under his signature as notary constituted his representation that the signature of the

affiant was genuine and that T.L. swore the content was true. See V.R.C.P. 11(b) (“By presenting

to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion,

or other document, an attorney . . . is certifying that to the best of [his] knowledge. . . [the] factual

contentions have evidentiary support . . . .”). As respondent did not see the documents being

signed and did not administer the oath to T.L. in his presence, he had no basis upon which to make

those representations. Respondent concedes “there may [have] be[en] a technical violation of the

notarization process.”

¶ 30. We agree with the Supreme Court of Ohio, which has explained that an attorney

acting in his capacity as a notary

owe[s] his clients, the public, and the judicial system a duty to

conscientiously observe his duties as a notary public. . . .

[A]uthenticating a document through notarization is not a trifle, and

the failure to do so properly is a fraud on anyone who later relies on

the document. Respondent owed an equally important duty to his

(11th ed. 2019) (“A certification added to an affidavit . . . stating when and before what authority

the affidavit . . . was made. A jurat typically says ‘Subscribed and sworn to before me this ____

day of [month], [year],’ and the officer (usu[ally] a notary public) thereby certifies three things:

(1) that the person signing the document did so in the officer’s presence, (2) that the signer

appeared before the officer on the date indicated, and (3) that the officer administered an oath or

affirmation to the signer, who swore to or affirmed the contents of the document.”).

5 Respondent claimed he administered the oath to T.L. over the telephone.

13

clients, the public, and the judicial system to ensure the authenticity

of documents executed at this direction.

Disciplinary Counsel v. Roberts, 117 Ohio St. 3d 99, 2008-Ohio-505, ¶¶ 12, 14, 881 N.E.2d 1236

(per curiam) (citation omitted) (disciplining attorney for knowingly “dishonoring his notary

jurat”). In this case, had respondent been truthful concerning the affidavits, a party or the court

could have challenged them. Whether the affidavits contained information which was consistent

with T.L.’s position is beside the point. The affidavits were not what respondent represented them

to be, and respondent knew this. Respondent’s submission of the affidavits when he had not seen

T.L. sign them and had not administered the oath in T.L.’s presence was knowingly dishonest

conduct and a violation of Rule 8.4(c). Regardless of the affidavit’s consistency with T.L.’s

position, respondent’s actions caused harm to the legal system. See In re McCarty, 2013 VT 47,

¶ 30, 194 Vt. 109, 75 A.3d 589 (“[A]ny time an attorney purposely ignores legal procedures [even]

for his client’s benefit, the legal system is undermined and thereby harmed.”). The presumptive

sanction under ABA Standards § 7.2 for “knowingly engag[ing] in conduct that is a violation of a

duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal

system[,]” is suspension.

B. Violation of Rule 3.3(a)(1): Default-Judgment Motion and Affidavit

¶ 31. The hearing panel found respondent’s submission of his affidavit in support of a

default judgment after agreeing to an open-ended extension of time for the defendant to answer

and without disclosing the concerns over the identity of the responsible West Star entity was a

violation of Rule 3.3(a)(1). That Rule provides that “[a] lawyer shall not knowingly . . . make a

false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law

previously made to the tribunal by the lawyer.”

¶ 32. Respondent submitted his affidavit which made no mention of either his discussion

with West Star Mortgage Inc.’s counsel or the communications confirming the open-ended

extension of time to answer. In addition, respondent amended the complaint twice without

14

providing a copy to any West Star entity and filed for default judgment against West Star

Mortgage6 after providing assurances to counsel that an extension of time to answer had been

given.

¶ 33. Respondent’s position that he had no obligation to inform the court of any of these

details at the time of the hearing to vacate the default because he had moved to withdraw overlooks

two things. First, respondent was not candid with the court at the time he filed the motion for

default and his supporting affidavit. See V.R.Pr.C. 3.3 cmt. 3 (“[A]n assertion purporting to be on

the lawyer’s own knowledge, as in an affidavit by the lawyer . . . , may properly be made only

when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably

diligent inquiry.”). This was well before he moved to withdraw as T.L.’s counsel. Although the

hearing panel did not do so, it is appropriate to consider that respondent’s affidavit was submitted

in support of a default motion in which he had a significant financial stake in the outcome by virtue

of his contingent-fee agreement with T.L.

¶ 34. Secondly, respondent did not inform the court of any of these discussions or

agreements when he moved to withdraw or when he attended the hearing on his motion to

withdraw, which was held concurrently with the motion to set aside the default judgment.

Respondent’s duty of candor to the court continued even if his motion to withdraw was granted,

and, under these circumstances, his failure to make a disclosure was the equivalent of an

affirmative misrepresentation. See V.R.Pr.C. 3.3 cmt. 3. The general duty of candor to the tribunal

continues. Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1546 (11th Cir. 1993) (“All

attorneys, as ‘officers of the court,’ owe duties of complete candor and primary loyalty to the court

before which they practice. . . . This concept is as old as common law jurisprudence itself.”), cert.

denied, 510 U.S. 863 (1993); United States v. Shaffer Equip. Co., 11 F.3d 450, 457-58 (4th Cir.

6 Consistent with his amended complaint, respondent moved for default judgment against

“West Star Mortgage” without a suffix.

15

1993) (“The [judicial] system can provide no harbor for clever devices to divert the search, mislead

opposing counsel or the court, or cover up that which is necessary for justice in the end.”); Griffis

v. S. S. Kresge Co., 197 Cal. Rptr. 771, 777 (Cal. Ct. App. 1984) (“The concealment of material

information within the attorney’s knowledge as effectively misleads a judge as does an overtly

false statement.”). “A review of the cases throughout the country clearly illustrate that the general

duty of candor may be thwarted through an attorney’s silence.” Gum v. Dudley, 505 S.E.2d 391,

400 & n.14 (W. Va. 1997) (collecting cases). Respondent cannot escape his duty to be candid with

the court by taking refuge behind a motion to withdraw, which itself did not inform the court of

the information leading to the motion to vacate. None of the information that respondent possessed

concerning the time to answer or identity of the West Star defendant required disclosure of any

attorney-client confidences which might have served to explain his nondisclosure. Respondent’s

actions in seeking the default and in not bringing forward the additional information were done

knowingly. Had the court been informed of these things, its decision to enter the default likely

would have been different, as evidenced by the court vacating the default judgment when all the

facts came to light.

¶ 35. Respondent asserts in his brief that no harm was caused to West Star Mortgage Inc.

by his actions because it did not spend anything in defense of the initial claims, it had incurred no

appearance or other expenses, and respondent “to this day, believes the proper party had been

served, and by this maneuver has evaded liability richly deserved.” We disagree. Harm was

caused to West Star Mortgage Inc. in the time and expense necessary to vacate the default. Harm

was also caused to the judicial system in wasting court resources to vacate a judgment that would

not have been entered had respondent fulfilled his duty of candor to the court.7 See V.R.Pr.C. 3.3

7 Respondent claims he was improperly prohibited from cross-examining West Star

Mortgage Inc.’s successor’s counsel at the disciplinary hearing concerning misconduct by West

Star in lending practices. This argument was not preserved, and we do not consider it. In any

event, the transcript shows respondent received an answer to the question he posed and did not

pursue further inquiry.

16

cmt. 2 (explaining that Rule 3.3 “sets forth the special duties of lawyers as officers of the court to

avoid conduct that undermines the integrity of the adjudicative process”). Respondent’s conduct

was knowing.

¶ 36. Respondent’s conduct was a violation of Rule 3.3(a)(1). As with the violation of

Rule 8.4(c), the presumptive ABA sanction, pursuant to § 7.2, for “knowingly engag[ing] in

conduct that is a violation of a duty owed as a professional, and causes injury or potential injury

to a client, the public, or the legal system[,]” is suspension.

C. Violation of Rule 1.4(a)(3)—Keeping Client Informed

¶ 37. Rule 1.4(a)(3) establishes that an attorney has a duty to keep his or her “client

reasonably informed about the status of the matter.” V.R.Pr.C. 1.4(a)(3). Respondent admits that

he failed to tell T.L. he was not going to file an appellate brief to support the appeal he had filed

on T.L.’s behalf. This was despite several phone calls between respondent and T.L. about the

appeal while it was pending and two inquires via email by T.L. to respondent asking about the

status of the appeal. One email was before the appeal was dismissed, and one was after.

Respondent never answered either one. His only excuse for not doing so was because of his sister’s

illness. And while respondent accepts responsibility, he still attempts to blame T.L., arguing that

the professional-conduct complaint against him is an effort by T.L. to gain an advantage in a

potential malpractice suit. Respondent’s conduct in not keeping T.L. informed was knowing,

which respondent does not dispute. This included delay in telling T.L. the appeal had been

dismissed in the face of his specific inquiry about its status. Respondent’s actions were a violation

of Rule 1.4(a)(3) in failing to keep T.L. reasonably informed of the status of his appeal.

Respondent’s violation resulted in injury to T.L., who lost his opportunity to appeal. This loss of

the right to appeal also caused T.L. anxiety.

¶ 38. When a lawyer knowingly fails to perform a service for a client and causes injury

or potential injury to the client, ABA Standards § 4.42(a) provides that the presumptive sanction

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is suspension. Lawyers should fulfill a client’s reasonable expectations for information consistent

with the duty to act in the client’s best interests. V.R.Pr.C. 1.4 cmt. 5. Respondent’s breach of

duty here was to his client, which the ABA regards as the most serious ethical duty. ABA

Standards, Theoretical Framework p. 5.

D. Sanction

¶ 39. The Vermont Rules of Professional Conduct serve a twofold purpose: to protect the

public from persons unfit to serve as attorneys and to “maintain confidence in our legal institutions

by deterring future misconduct.” In re Hunter, 167 Vt. 219, 226, 704 A.2d 1154, 1158 (1997); see

also In re McCoy-Jacien, 2018 VT 35, 207 Vt. 624, 186 A.3d 626 (mem.). The purpose of

sanctions is not to punish, but to further those two ends. In re Obregon, 2016 VT 32, ¶ 19, 201 Vt.

463, 145 A.3d 226. In consideration of appropriate sanctions, we draw guidance from the ABA

Standards for Imposing Lawyer Discipline, which call for weighing “the duty violated, the

attorney’s mental state, the actual or potential injury caused by the misconduct, and the existence

of aggravating or mitigating factors.” In re Andres, 2004 VT 71, ¶ 14, 177 Vt. 511, 857 A.2d 803

(mem.). As noted above, see supra, ¶ 26, we have further clarified that we consider the

recommendation of the hearing panel to be “just that—a recommendation.” Robinson, 2019 VT

8, ¶ 27. “If our analysis comports with the recommendation of the panel, we will affirm it; if it

does not, we will exercise our plenary authority to reach the appropriate conclusions and

sanctions.” Id.

¶ 40. The Standards provide that in each case, after making an initial sanctions

determination, the court should then consider the presence of aggravating and mitigating

circumstances to arrive at the appropriate sanction. Strouse, 2011 VT 77, ¶ 19 (explaining that

Standards provide presumptive sanction which “can then be tailored to the case, based on the

presence of aggravating or mitigating factors”). Respondent has breached three Rules of

Professional Conduct, each carrying a presumptive sanction of suspension. With this background

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in mind, we consider the aggravating and mitigating circumstances. ABA Standards § 9.2 sets

forth a non-exclusive list of factors which may justify an increase in the degree of discipline to be

imposed and are thus aggravating circumstances. ABA Standards § 9.3, in turn, lists a non-

exclusive group of factors which may justify a downward departure from the presumptive sanction.

¶ 41. Foremost among the aggravating circumstances here is respondent’s prior

disciplinary history resulting in his suspension in 1997. ABA Standards § 9.22(a). That

suspension stemmed from numerous violations of the Code of Professional Responsibility taking

place between 1985 and 1993. Among the violations, respondent acted without clients’ approval

and bound them to unauthorized settlements; misrepresented to other attorneys his authority to

bind his clients; lied to clients about the status of their cases; was knowingly and repeatedly

dishonest with clients, other attorneys, and the courts; failed to keep in contact with clients and

inform them of their legal obligations; failed to file a promised lawsuit; failed to forward settlement

offers and court papers; did not fulfill his professional contracts with clients; and engaged in

conduct adversely reflecting on his fitness to practice law. While recognizing that “[s]uch behavior

generally merits disbarment,” the Court followed the recommendation of the Professional Conduct

Board, imposing a three-year suspension while characterizing respondent’s misconduct as “grave.”

Wysolmerski, 167 Vt. at 563, 702 A.2d at 74-75. The Court did not disbar respondent at that time

solely because of mitigating factors, primarily respondent’s problems in his personal life. Id.

¶ 42. Because of the passage of time, the hearing panel here did not ascribe significant

weight to the prior misconduct in aggravation, despite noting “some similarity between the current

violations and the misconduct underlying the 1997 suspension that is troubling the panel.”8

8 Disciplinary Counsel did not argue before the hearing panel, and the panel did not

consider, whether ABA Standards § 8.1(b) applied to this misconduct. Section 8.1(b) provides

that “[d]isbarment is generally appropriate when a lawyer” has previously “been suspended for the

same or similar misconduct, and intentionally or knowingly engages in further acts of misconduct

that cause injury or potential injury to a client, the public, the legal system, or the profession.”

Given the similarity between some of respondent’s current misconduct and that which was the

subject of the 1997 suspension order, Standards § 8.1(b) provides additional support for our

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Relying on In re Fink, 2011 VT 42, the hearing panel determined that the prior discipline should

carry little weight “[b]ecause of the lengthy period of time that elapsed between the events

underlying those charges and the conduct currently charged.” It is true that we considered the

remoteness of prior misconduct to be a mitigating factor in Fink, consistent with ABA Standards

§ 9.32(m).9 See Fink, 2011 VT 42, ¶ 45. However, we think that Fink paints with too broad a

brush. Although remoteness of prior misconduct is a mitigating circumstance, many jurisdictions

have recognized that where the prior misconduct is severe or where it is similar to the current

misconduct, the mitigating value of remoteness is dampened or eliminated. In re Disciplinary

Proceeding Against VanDerbeek, 101 P. 3d 88, 92 (Wash. 2004) (holding that remoteness of

lawyer’s past misconduct was not mitigating factor where prior disciplinary offenses were similar

in nature to instant offense); Disciplinary Matter Involving Stepovich, 386 P. 3d 1205, 1212

(Alaska 2016) (holding that remoteness did not lessen weight of prior-offense aggravator because,

while offenses were “not all similar, a lawyer with a history of professional discipline should be

familiar with the Rules of Professional Responsibility and particularly apt to tread carefully in

circumstances that are ethically uncertain”). Given the gravity and similarity of respondent’s prior

misconduct, the passage of time does not blunt its significance as an aggravating factor in this case.

sanctions determination. See also People v. Bottinelli, 926 P.2d 553, 558 (Colo. 1996) (en banc)

(“Were this the first time that the respondent had engaged in this type of misconduct, a period of

suspension might be appropriate. The respondent, however, has engaged in such conduct before,

and has been suspended for it, with no apparent effect on his subsequent behavior.” (citations

omitted)); In re Friedland, 416 N.E.2d 433, 439 (Ind. 1981) (finding disbarment appropriate where

attorney was subject to prior discipline and “[t]he misconduct found in the prior proceeding

together with the misconduct present in this cause establishes a pattern” indicating that

“Respondent d[id] not appear to understand the responsibilities of attorneys admitted to practice

in this State”); Benson v. State Bar, 531 P.3d 581, 584, 588, 590-91 (Cal. 1975) (finding

disbarment appropriate sanction for attorney, previously suspended for misappropriation of client

funds, who induced client to loan him money by making false representations and then failing to

repay loan).

9 Although the ABA Standards identify the remoteness of prior conduct as a “mitigating”

factor, it is better understood as a consideration that reduces or eliminates the aggravating impact

of the prior misconduct.

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We disagree with the hearing panel’s assessment that the prior misconduct was not entitled to

significant weight given the passage of time.

¶ 43. A dishonest or selfish motive is also an aggravating circumstance pursuant to ABA

Standards § 9.22(b). The hearing panel recognized this as a potential aggravating circumstance,

finding that respondent acted with a dishonest motive in connection with the notarization of the

affidavits and in omitting material information from his default motion. However, the panel found

he did not act in with any motive to benefit himself in connection with any of the violations. The

panel therefore found the absence of a selfish motive tempered somewhat the application of this

factor. Leaving aside that respondent had a financial interest in obtaining a judgment in T.L.’s

favor, we believe the panel reads the application of this aggravating circumstance too narrowly.

ABA Standards § 9.22 does not require conduct to be dishonest and selfish in order to be

aggravating; it is an aggravating circumstance if the conduct is dishonest or selfish. See ABA

Standards § 9.22(b) (“dishonest or selfish motive” (emphasis added)). While the extent of

aggravation might have been greater had the conduct been both dishonest and selfish, the absence

of selfishness did not make the conduct any less dishonest.

¶ 44. ABA Standards § 9.22(c) recognizes “a pattern of misconduct” as an aggravating

circumstance. The hearing panel correctly recognized that respondent engaged in a pattern of

misconduct. The panel felt it was important that respondent’s dishonest conduct was isolated to

one case and one client. We disagree with the panel’s position that the impact of an aggravating

circumstance due to a pattern of misconduct is somehow lessened if the misconduct occurs within

one case and is limited to one client, absent some suggestion that the misconduct was triggered by

factors unique to that case or that client. Even were that to be the case, respondent’s misconduct

here was directed at the court, opposing counsel, and respondent’s client. Under the circumstances

of this case, that the misconduct occurred within one case and involved only one of respondent’s

clients does not serve to lessen the aggravating circumstance posed by a pattern of misconduct.

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¶ 45. Respondent committed five violations of the Rules of Professional Conduct.

Multiple offenses are an aggravating circumstance. ABA Standards § 9.22(d). The hearing panel

noted that three of the offenses were closely related and that all of the offenses pertained to one

case and one client. In this case, we do not find the aggravating circumstance posed by multiple

offenses to be lessened because three of them were closely related or because the misconduct

occurred in one case and involved one client.

¶ 46. The ABA Standards provide that, where either a pattern or multiple instances of

misconduct are aggravators, “[t]he ultimate sanction imposed should at least be consistent with the

sanction for the most serious instance of misconduct among a number of violations; it might well

be and generally should be greater than the sanction for the most serious misconduct.” ABA

Standards, Theoretical Framework at 7, see also McCoy-Jacien, 2018 VT 35. Here, respondent

engaged in both a pattern of misconduct and multiple instances of misconduct. As a result, the

Standards support a sanction more severe than the presumptive sanction for the most serious

misconduct. In this case, the presumptive sanction for the most serious misconduct is suspension.

The next-more severe sanction—which generally should apply where multiple instances of

misconduct are involved—is disbarment. Therefore, we find that the appropriate sanction is not

suspension, but disbarment. See Eshleman’s Case, 489 A.2d 571, 574 (N.H. 1985) (holding that

presence of mitigating factors does not preclude sanction of disbarment).

¶ 47. Finally, “substantial experience in the practice of law” is an aggravating

circumstance pursuant to ABA Standards § 9.22(i). Respondent had been an attorney since 1980,

save for the three-year suspension he served beginning in 1997. He had substantial experience in

the practice of law. See, e.g., In re Neisner, 2010 VT 102, ¶ 19, 189 Vt. 145, 16 A.3d 587

(concluding “substantial experience” aggravator appropriate where respondent “had been

practicing for nearly twenty years”); In re Blais, 174 Vt. 628, 628, 630, 817 A.2d 1266, 1267,

22

1269 (2002) (finding “substantial experience” aggravator appropriate where attorney had eighteen

years of experience at time of earliest misconduct).

¶ 48. The hearing panel found that the following mitigating factors were present:

respondent was under the stress of personal and emotional problems in the summer and fall of

2017, see § 9.32(c); respondent was generally cooperative in connection with the disciplinary

proceeding, § 9.32(e); respondent expressed remorse for failing to inform T.L. he would not be

filing an appellate brief on his behalf, § 9.32(l); and the temporal remoteness of respondent’s prior

disciplinary offenses § 9.32(m). As set forth supra, ¶¶ 41-42, because respondent’s prior offenses

were both serious in nature and similar to the conduct at issue here, we find no mitigation under

§ 9.32(m). We address the remaining mitigating factors in turn.

¶ 49. The panel accepted respondent’s “testimony that in the summer and fall of 2017 he

was under considerable stress and distracted from his professional duties as a result of his sister’s

final illness,” and correctly limited the associated mitigation to “the time period when the

misconduct associated with T.L.’s appeal occurred.” Respondent’s personal difficulties have no

mitigating effect on his serious misconduct in connection with the three affidavits or the motion

for default. Similarly, respondent expressed remorse only for failing to inform T.L. that he would

not be filing a brief on his behalf. He did not express remorse for his misconduct in connection

with the affidavits or the motion for default. The panel appropriately assigned respondent’s limited

expression of remorse limited weight in mitigation.

¶ 50. The panel also found that respondent was “generally cooperative” in connection

with the disciplinary proceeding. However, it did not afford significant weight to this factor

because, pursuant to V.R.Pr.C. 8.1(b), respondent had a professional duty to cooperate with the

investigation. See In re Farrar, 2008 VT 31, ¶ 9 n.2, 183 Vt. 592, 949 A.2d 438 (mem.) (“Attorneys

are independently obligated under the rules to . . . cooperate with disciplinary proceedings.”). We

23

agree that little mitigation arises from respondent refraining from further violation of the Rules by

cooperating as he was required to do while the instant misconduct was under investigation.

¶ 51. We disagree with the panel’s determination that the aggravating factors do not

substantially outweigh the mitigating factors. We find that the collective weight of respondent’s

very substantial experience in the practice of law; the pattern of misconduct at issue; the multiple

instances of misconduct; his dishonest motive; and his history of serious misconduct, very similar

to the conduct at issue here, overwhelms the scant mitigation afforded by his cooperation, limited

expression of remorse, and the stress of his personal problems during the period of T.L.’s appeal.

This, too, supports a sanction of disbarment.

¶ 52. “Disbarment is a protective device, not an additional punishment.” In re Harrington,

134 Vt. 549, 552, 367 A.2d 161, 163 (1976). In this case, we conclude that disbarment is the only

sanction sufficient to protect the public. Further, we note that,

[o]ur adversary system for the resolution of disputes rests on the

unshakable foundation that truth is the object of the system’s process

which is designed for the purpose of dispensing justice. . . . Even the

slightest accommodation of deceit or a lack of candor in any material

respect quickly erodes the validity of the process. As soon as the

process falters in that respect, the people are then justified in

abandoning support for the system in favor of one where honesty is

preeminent.

Shaffer Equip. Co., 11 F.3d at 457. For these reasons, we likewise conclude that disbarment is the

only response sufficient to maintain public confidence in the Vermont bar. Therefore, we

respectfully depart from the panel’s sanctions recommendation.

Sigismund Wysolmerski is hereby disbarred from the practice of law. The date of this

order is the effective date of respondent’s disbarment for purposes of calculating the five-year

period before respondent may apply for readmission.

FOR THE COURT:

Associate Justice